Tag Archives: First Amendment

More on Obama’s war on journalism

By Christopher B. Daly

Below is an intelligent discussion of the Obama administration’s over-reaching to investigate “leaks” to journalists. It inolves UChicago law professor Eric Posner and Slate journalist Emily Bazelon.

Here is the original piece on Slate, which contains all the links but which I found nearly unreadable at this length on the Slate site.

As a service to my readers, I have re-formatted it below. I removed all the jumping, blinking ads, and I got rid of the reader-hostile san-serif typeface that Slate uses (in an apparent effort to appear “modern”). Instead, it is formatted in Times New Roman 16.

 

Secrets and Scoops

Emily Bazelon and Eric Posner debate press freedom, national security, and the government’s grab of the AP’s phone records.

By Emily Bazelon and Eric Posner

Posted Friday, May 17, 2013, at 1:52 PM

In the wake of the story this week that the Justice Department scooped up two months’ worth of the phone records of reporters and editors at the Associated Press, University of Chicago law professor and Slate contributor Eric Posner and Slate senior editor Emily Bazelon have been arguing over whether this is an overreach by the Department of Justice and an intrusion on the newsgathering function of the press (Emily), or an entirely justified effort to find and prosecute a scurrilous government leaker who imperiled the country’s counterterrorism operation in Yemen (Eric). Here’s an edited version of their exchange:

Emily: Like a lot of journalists, I am dismayed and indignant about the Justice Department’s commandeering of two months of AP phone records. To me, this is part of a troubling development: The Obama administration has pursued more leak prosecutions—six—more aggressively than any administration in history. For comparison’s sake, as I mentioned earlier this week, from 1917 until 1985, there was one successful federal leak prosecution. Our democracy was the better for the freedom the press has traditionally had to uncover government secrets (see Watergate). In the case of the AP, the particular tactics the government used are worrisome for their breadth—lots of phone lines in different offices over a long period of time—and for the lack of judicial oversight. Instead of serving the AP with a subpoena, which would have alerted the news organization and given it a chance to fight the order in court, DoJ apparently sent the subpoena to the phone companies. The Justice Department decided on its own not to follow its usual policy of giving the press notice of this kind of intrusion, because it apparently decided that giving notice would threaten the integrity of the investigation. It’s hard to see why that would be true of phone records collected after the fact, as New Yorker general counsel Lynn Oberlander points out—and her larger point is that this should be a call for the courts, not prosecutors, to make.

Journalists don’t really have a legal leg to stand on to protect their sources in the federal government, however—especially when any claim can be made that national security is at stake. The 1917 Espionage Act was written to fight sedition and prevent government officials from compromising military security, and has lately become a tool for going after people who leak classified information. My concern is that once a leak investigation is underway, invoking national security almost always trumps the argument that the public benefits from knowing about the internal workings of government. The Justice Department says “trust us” and “sensitive investigation” and that’s that. Why exactly should we follow along like lemmings?

But that’s not how you see it, I think. To tee you up: Did the government overreach in the AP probe? Or is this the kind of investigative tactic that gets the press and a few civil libertarians up in arms but seems perfectly sensible to everyone else?

Eric: It makes perfect sense to me—I can’t speak for everyone else, whose opinions rarely coincide with mine. The May 2012 AP story that’s at issue disclosed that the CIA thwarted a terrorist plot to plant a bomb on a plane flying to the United States from Yemen. As Orin Kerr explains, anyone who read the story could infer that U.S. or foreign agents had penetrated al-Qaida’s Yemen affiliate. Even if AP delayed publication until after completion of the operation, the information disclosed may have put the lives of agents in danger or disclosed intelligence methods or simply made foreign intelligence agencies yet again doubt the U.S. government’s ability to keep secrets. The story identifies its sources as U.S. government officials, who clearly violated federal secrecy law. The Justice Department acted rightly to investigate these violations. And because it knew that U.S. government officials communicated with AP journalists, it acted rightly to subpoena phone records that might disclose phone numbers of U.S. officials, who could then be questioned.

If the Department of Justice were investigating Wal-Mart, JP Morgan, or Google for violations of antitrust or securities law, the reaction would be a big yawn. Because it is investigating journalists, we are supposed to feel outraged. But why, exactly? I’m not a journalist myself, Emily, so maybe you can explain the unanimous expressions of outrage from the media and its supporters. I can see a worry about whistleblowers being deterred, but no one thinks that this case involves whistleblowers—by all accounts, the operation was a success and not occasion for a cover-up.

Emily: Journalists think we are special when it comes to revealing sources because protecting them gets us stories that the public benefits from knowing. Maybe the AP’s sources for this story weren’t whistleblowers. Since the government won’t tell us what triggered the subpoena, we don’t know. But yes, I do think that blanket orders for records like this one could deter whistleblowers. Consider the case of Thomas Drake, prosecuted for revealing information about waste and mismanagement at the National Security Agency that led to a prize-winningBaltimore Sun series. And consider the enormous number of classified documents and the probability that some of them are kept secret to avoid embarrassment rather than a breach of security. If you were a government employee with access to a secret like that, and you heard about Drake and the AP, wouldn’t you keep quiet? In assessing the threat to national security, it’s also important to note that the AP held back publication for a week—until the day before a government press conference about the foiled bomb plot. But, conceded, that doesn’t mean the leak itself didn’t pose a great risk. Why shouldn’t the government have to make that showing to a judge? That seems like a speed bump, not a red light. And it would address the “trust us” concern. Maybe even reassure whistleblowers, too.

Eric: You’re right to observe that government officials do not always have good incentives. I’d say they have mixed motives: (1) to protect the country and (2) to protect their hides when they fail at (1). But journalists harbor mixed motives as well. They want to disclose bad behavior among government officials, but they also want attention, Pulitzers, hits, readers—and nothing gets attention like stories about secret counterterrorism operations. The New York Times acted disgracefully by exposing the secret government program to trace money transfers among al-Qaida terrorists in a 2006 article written by Eric Lichtblau and James Risen. They did not expose government malfeasance; they exposed an intelligence operation that al-Qaida would henceforth know to evade. See Jack Goldsmith’s devastating evisceration of Lichtblau’s and his editors’ lame, self-serving rationalizations of their decisions to compromise this valuable intelligence program and others like it. I agree that courts can play a useful role in arbitrating disputes between the government and the press. But I am not convinced that they would have played a useful role here. The government had no legal obligation to seek approval from the courts, and even its harshest critics agree that if it had, a judge would have rubber-stamped the government’s request under the prevailing legal standard. So what exactly would have been accomplished? The problem is that judges are human beings like the rest of us; when confronted with national security justifications from government lawyers that they cannot directly test or verify, they have no choice but to defer to them, while the procedure would slow down the investigation. If it was a question of someone going to jail, courts would be less deferential, but the harm you describe—that potential whistleblowers in future potential cases may be deterred from talking to journalists—will have to yield to the government’s reasonable request for information so that it can conduct a criminal investigation.

Emily: OK, we each have our example of excess: For me it’s the case of Thomas Drake, for you it’s the Lichtblau and Risen series. I see runaway prosecutors and you see a runaway press. I disagree that judges need be a rubber stamp. I’m sure you’re right that they approve most subpoena requests, and maybe that’s OK, because the government’s requests pass the smell test. But two examples to the contrary that give me comfort: In 2008, in the prosecution of another accused leaker, former CIA agent Jeffrey Sterling, New York Times reporter James Risen was subpoenaed about his sources for his book on the history of the CIA during the Bush administration. In 2011, Judge Leonie Brinkema ruled that Risen did not have to testify against Sterling. “A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” she wrote. There’s an example of an informed judge standing up to the government’s supposedly sacred invocation of national security. Here’s another older one of a judge standing up for the press: In 1973, Judge Charles Richey denied subpoenas that sought the identity of Deep Throat, the Washington Post’s Watergate source. “This court cannot blind itself to the possible chilling effect the enforcement of these subpoenas would have on the flow of information to the press and thus to the public,” he said in March 1973, in response to demands for documents from the Post and the NYT by Nixon’s re-election committee.

Brinkema’s decision is on appeal to the U.S. Court of Appeals for the Fourth Circuit—a year after arguments, that court has yet to hand down a ruling. Needless to say, I’m rooting for Risen. Brinkema said that going after a reporter’s sources should be a last resort, and that the government had other options in this case it hadn’t pursued. The deputy attorney generalclaims that’s not true of the AP probe. But again, why should we trust him, instead of a neutral arbitrator, to make this call?

The White House has tried to soothe the press by promising to reintroduce a federal shield law for journalists. The bill lapsed after the WikiLeaks document dump in 2010. Do you think a statute like this one is a good idea? Would it change anything?

Eric: You mentioned the Sterling case, where Judge Brinkema quashed subpoenas issued by the government to Risen, to force him to testify as to the identity of his source (allegedly Sterling) for a report about a U.S. intelligence operation against Iran. Judge Brinkema ruled against the government because she believed that the Justice Department did not need Risen’s testimony to win its case—which suggests that Risen would have been compelled to testify if the government needed his testimony. The funny thing about this opinion is if you take it literally, the qualified First Amendment privilege that prevails in Brinkema’s court would not actually protect any whistleblower, since it applies only if the government can convict the whistleblower without the reporter’s testimony. I doubt that this is in fact the case, suggesting the opinion is poorly reasoned—for why would the government try to appeal the opinion if it can convict Sterling without Risen’s testimony? So I accept your view that a judge need not be a rubber stamp. But the pertinent question is whether we can trust judges to adjudicate disputes like this competently—in such a way that balances the government’s interest in protecting leaks and the public’s right to know. On the basis of this harebrained opinion, I would say no. You also argued in your Slate piece that the Obama administration has launched a “war on journalism” because of the unprecedented number of leak prosecutions—six. According to this helpful article by Charlie Savage, only three prosecutions had ever taken place before Obama assumed office. Savage goes on to suggest that one reason for the increase in prosecutions is simply that it is easier today for the government to catch leakers by following electronic trails than in the analog past. I’d like to make two additional points. First, compared with the astonishing quantity of revelations in books like Risen’s and Lichtblau’s, the actual number of prosecutions is truly minuscule. A government official thinking about blowing the whistle should know that the risk of detection and prosecution is close to zero, even in Obama’s reign of journalistic terror. You said earlier “invoking national security almost always trumps the argument that the public benefits from knowing about the internal workings of government”—but is there anything about recent counterterrorism operations that the public doesn’t know? When these operations succeed, someone leaks classified information so he can gain credit for himself or his boss. When the operations fail, someone leaks classified information so she can place the blame on a rival.

Second, the government faces enormous constraints when it prosecutes leaks, and these constraints overshadow the puny legal considerations, like the vagueness of the Espionage Act, which you rightly note. A recent book by Gabriel Schoenfeld, which recounts the history of the press’ involvement in the disclosure of classified information, discusses many of these. Governments often refrain from prosecuting because they fear that doing so will draw attention to the disclosure of secrets, the seriousness of which enemies might otherwise overlook. Governments often face a “graymail” threat from leakers, journalists, and lawyers, who hint that additional classified information may be disclosed if a trial is held, or that it must be disclosed so that the trial is fair. Then there is the sheer difficulty of proving all the elements of a criminal case, and confronting a jury who may sympathize with whistleblowers. Finally, the government needs the press on its side, and as we have seen from the last few days, the press is perfectly willing to retaliate against the government for what it regards as unwarranted investigations and prosecutions—by, say, whipping up three unrelated penny ante scandals into a toxic brew suggesting something like Rome under Caligula.

So rather than accept the press’ description of itself as David fighting the government’s Goliath, I see something close to a battle among equals, where the press has done rather well. Has a journalist ever been held criminally liable for his or her complicity in the intentional disclosure of classified information, a plain violation of criminal law? I don’t think so. That says a lot about the true balance of power. In answer to your questions about the proposed shield law: A number of laws have been proposed that would create a reporter’s privilege. The details vary, but the major idea is to protect journalists with a balancing test so that they will not be compelled to disclose sources when the public interest in disclosure “outweighs” the public interest in concealment. So maybe under this standard a court would protect sources who disclose Watergate but not sources who disclose the identities of agents in an undercover counterterrorism operation. There is a vast amount of space between these two extremes; I have no particular confidence that courts would be able to engage in the appropriate balancing for, say, a story that reveals the identities of agents in a counterterrorism operation who might (or might not) have broken some laws. Nor does the Obama administration: The version of the law it supports requires judges to defer to the government when it claims that national security is at issue. Beyond that, I don’t see the necessity of such a law, given the arguments I’ve made about the magnitude of the political constraints on the prosecution of leakers, and on investigations of journalists. Those constraints ensure that the government will investigate leaks, and bring prosecutions, only in extreme cases. As for the Drake case, your Exhibit A for abusive prosecution of a whistleblower, it exploded in the government’s face. “If they had it to over again, I suspect the department likely would not bring the Drake case,” said a former DOJ spokesman.

Emily: Yes, the detonation of the Drake case is the only good thing about it! But that took years. I’m mulling your characterization of the press and the government as near equals. We don’t see ourselves that way, but maybe that’s because the underdog complex serves our interests. It’s also in our DNA to worry about sources drying up and to prize revelation over secret keeping. I still think, though, that the power of prosecution is the all-mighty one. The press helps to keep it in check, and so do judges. I score lots of points for you in this debate, but I’m hanging on to my faith in the importance of both.

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Obama: Wrong on the Constitution, Stupid on the Politics

By Christopher B. Daly 

imgres3By approving or tolerating the abuses of power involved in the AP and Fox News cases, President Obama has positioned himself on the wrong side of the First Amendment. He is moving in the direction of making journalism a criminal activity.

For a former constitutional law professor, that is beyond disappointing.

For a politician who needs the press to govern, that is just stupid.

More evidence comes from the group Reporters Without Borders, an international journalism-advocacy group that supports press freedom in places like Morocco and Bahrain. Now, they feel the need to express concern about the state of press freedom in the United States, where the concept was born. Sheesh.

Also, don’t miss this comment from Ryan Lizza in The New Yorker.

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A shield law for reporters? Thanks, but no thanks!

By Christopher B. Daly

First, the Obama administration antagonized the news media by seizing the phone records of The AP-logoAssociated Press. Now, in an effort to make up, the president has thrown his support behind a Senate bill that would create a federal “shield law” that would allow journalists to legally protect their confidential sources.

A lot of journalists have embraced the idea. But I believe that journalists should say, “Thanks, but no thanks.”

Tempting as it might be, a federal shield law is a bad idea for journalists. We do not need it, and we may ultimately regret it. The relevant part of the First Amendment to the Constitution says: Congress shall make no law abridging the freedom of the press. That powerful simple phrase “no law” means just that – no law, period. It means Congress simply cannot legislate in this area.

As a near-absolutist about the First Amendment, I think that part is clear and simple. Furthermore, I believe that a proper reading of the First Amendment makes a shield law superfluous. We almost got such a reading in 1972, in the Supreme Court case known as Branzburg v. Hayes. In that case, the nation’s highest court said that when prosecutors haul reporters in front of federal grand juries and demand to know the names of their sources, the reporters must reveal their sources or face going to jail for contempt of court. In other words, reporters do not enjoy a legal “privilege” against having to testimony such as those enjoyed by doctors, lawyers, or clergy.

The ruling in Branzburg, while wrong, was nearly right. It was a 5-4 ruling, and one of the majority justices was clearly ambivalent about the issue. Justice Lewis F. Powell, as the New York Times reported in 2007, wrote some handwritten notes while the case was being decided. Powell (no friend of the news media) went right up to the line of agreeing with the minority instead of the majority. He wrote:

I will make clear in an opinion . . . that there is a privilege analogous to an evidentiary one, which courts should recognize and apply on case by case to protect confidential information. . . . My vote turned on my conclusion . . . that we should not establish a constitutional privilege.

Those notes are fairly opaque, but they do suggest that reporters very nearly got the recognition they deserve. [Brief digression: Powell’s notes were written on a court form captioned U.S. vs. Caldwell. That’s not a mistake. The Branzburg case was combined with two others in 1972, including a federal subpoena ordering NYTimes reporter Earl Caldwell to testify before a federal grand jury and name his confidential sources among the Black Panthers. For more, see chap XX of my book, Covering America.] The reasoning for granting reporters a “testimonial privilege” is pretty straightforward. Through the First Amendment, the Constitution gives the practice of journalism a 1007LIPTAK.1100.1065special status that recognizes the vital role that a free and independent press plays in the ability of the American people to govern themselves. If the people are to make informed votes and policy choices, they need good sources of information — especially about the performance of the government itself. But like many powerful institutions (corporations, the clergy, and others), government officials like to control the flow of news and information. So, they regularly try to intimidate and chill the practices of journalism.

The practice of journalism includes both a news-gathering function and a news-disseminating function. Neither one is of much use without the other. That is, if journalists are free to disseminate news but not to gather it, they will have nothing of value to share with the people. Conversely, if they are free to gather news but not to disseminate it, the people will again be thwarted in their ability to learn the things they need to know to govern themselves. Thus, journalists must be free to gather news (by reporting) and to disseminate news (by printing, broadcasting or posting).

In the normal course of news-gathering, journalists seek information in all quarters. They observe some events first-hand, they examine documents, and they interview people. Often, the most sensitive and valuable kinds of news come to journalists from sources who need to remain anonymous to avoid retaliation such as being fired or prosecuted. In those cases, journalists promise the source confidentiality. They say something along these lines: Please give me the important information you have, and in return, I will promise to keep your identity a secret.

These kinds of promises are not routine, but they are fairly commonplace — especially in certain kinds of fields, such as reporting about the military, our spy agencies, or any sort of abuse of power. The source wants to blow the whistle on a secret that the source considers illegal, immoral, or just plain wrong. Often, the reporter is indifferent on that question, but the reporter can see that the material should reach the general public, so that the American people can decide the issue.

Should we, for example, use drones to kill American citizens abroad? That’s an important question, but we could not even debate it without “leaks” from confidential sources. Without a constitutional privilege, reporters make such promises to their sources at their peril. It is perfectly predictable that those in power (from either party) will reflexively attempt to control the flow of information to the people. One attractive mechanism for doing that is to force journalists to name their confidential sources and then to go after the sources and punish them. If I were a tyrant seeking to use the limited powers of government to create unlimited personal power, that is one of the ways I would go about it.

Gilbert_Stuart_Thomas_Jeffersen(5)That is exactly what Thomas Jefferson and his supporters among the Founders foresaw and sought to prevent. One of the remedies they came up with was an absolute guarantee of press freedom. That’s why I believe we journalists do not need to ask Congress to bestow such protections on the practice of journalism. Indeed, we should be wary of inviting Congress to legislate about the press at all, because once legislators start writing laws, it is exceedingly difficult to get them to stop. Today, they may say they are proposing to do us a favor by granting us a shield. Tomorrow, having established the precedent, they may decide to improve that law by “clarifying” just who is a journalist. Before long, Congress might decide to license journalists or protect confidential sources in the Executive branch but deny such protection to their own staffers. There would be no end to it.

Instead, I believe that journalists should stand firm and insist on the rights we already have under the First Amendment. That was essentially the view expressed by one of the dissenters in the Branzburg case. In an eloquent and penetrating opinion, Justice William O. Douglas argued that the First Amendment exists for the ultimate benefit of the American people. When reporters do their jobs, Douglas wrote, “the press is often engaged in projects that bring anxiety and even fear to the bureaucracies, departments, or officials of government.” But if journalists can be intimidated into giving up their confidential sources, he warned, then “the reporter’s main function in American society will be to pass on to the public the press releases which the various departments of government issue.”

[Full disclosure: I worked for The Associated Press for a total of 10 years, between 1976 and 1989, in the NYC world headquarters and in the Boston bureau.]

 

 

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Memo to Obama: Hands off the news media!

By Christopher B. Daly

Today brings more disappointing news about the Obama administration. As they spend more years in office, they are starting to revert to the mean and resemble a very ordinary power-grabbing, rights-trampling, self-serving operation. Alas.

NYT coverage / WaPo coverage.

Image_FreeSpeechWhile they have been busy not closing Guantanamo, this administration has been busy setting the all-time record for leaks investigations. The latest misguided attempt to stop leaks is the disclosure that the Obama Justice Dept. “secretly seized two months of phone records for reporters and editors of The Associated Press.” The rationale was that the AP had received a “leak” from someone in the government about a CIA operation to disrupt a plot unfolding in Yemen that was aimed at taking down an airliner. If true, that was a fine thing for the CIA to do. If true, then the folks in the CIA running the operation should have kept their mouths shut. If someone in the government who had knowledge of it spilled the beans, that’s not the fault of journalists. The Obama administration, like every other administration, needs to get its own house in order. You don’t stop leaks by trampling the First Amendment.

Instead, we get this (from NYT):

The A.P. said that the Justice Department informed it on Friday that law enforcement officials had obtained the records for more than 20 telephone lines of its offices and journalists, including their home phones and cellphones. It said the records were seized without notice sometime this year. The organization was not told the reason for the seizure.

The First Amendment exists to safeguard the right of the American people to be informed. The only known means to provide the kind of information we need to govern ourselves comes from a free and independent press, which is protected in its new-gathering every bit as much as it is protected in its news-telling. If the executive branch investigates the news media every time its own employees leak information, that cannot help but have a “chilling effect” on the news business.

This is ancient truth, going back at least as far as the Pentagon Papers and Watergate. If Obama does not want to go down in history in the same chapter with Richard Nixon, he has got to cut this stuff out. He could start by firing Attorney General Eric Holder.

Memo to the AP: The government got all those phone records from your telephone company. I would suggest you cancel your account and try a different carrier. 

Hat-tip: to NYT’s Charlie Savage, who seems to have staked out a new beat: reporting on the constitutional infringements and other abuses of power committed by the Obama administration.

Obligatory quote: Here’s Thomas Jefferson on the dangers of executive power:

"Aware of the tendency of power to degenerate into abuse, the
worthies of our country have secured its independence by the15715v
establishment of a Constitution and form of government for our
nation, calculated to prevent as well as to correct abuse." 
--Thomas Jefferson to Washington Tammany Society, 1809.

Clarification: Of course, what the administration objects to are unauthorized leaks. The leaks they plan and execute for their own purposes are, naturally, quite alright.

 

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The Constitution is for everyone

By Christopher B. Daly 

One of the most serious recent threats to press freedom is playing out in Colorado. It involves a reporter for FoxNews.com who is the target of a subpoena by a state prosecutor who is pursuing the case against the suspect in the 2012 mass shooting in Aurora, Colo.

At issue is some reporting done by Jana Winter, who is an investigative reporter at FoxNews.com. In a story labeled EXCLUSIVE, Winter quoted two sources (whom she did not name) telling her that the suspect, James Holmes, had mailed a notebook to a psychiatrist before the shooting. According to one of the sources cited in her story, the notebook was “full of details about how he was going to kill people.”

As so often happens, the prosecutors in Colorado would like to know the identity of her confidential sources. For solid professional reasons, the reporter does not want to divulge those names. (If she did, then all sources would be that much more reluctant to speak to reporters, and — here’s the punchline: the public would be less informed.)

As so often happens, the judge in the case would also like to know the identity of the sources, so he is threatening to hold Winter in contempt of court unless she rats out her sources. That means the judge could send her to prison for up to six months, or until she relents and gives up the names.

This is a classic case of prosecutorial and judicial abuse of power that threatens the public’s right to know. The Constitution’s First Amendment, which guarantees freedom of the press, exists for the benefit of the American people, not just the news business. The people have a right to know things, and it’s for that reason that government is restrained from interfering with news-gathering and news dissemination.

In cases like this, a “shield law” could protect the reporter from such pressure and threats. But a proper reading of the Constitution could serve just as well. In the rare cases where the use of confidential sources gets to the point where jail time is a real threat, most jurisdictions require that prosecutors meet a multi-prong test: the material being sought must be germane to the case, and it must be unavailable in any other way. This case hardly meets either standard. In the criminal case against Holmes, the question for the jury will be, did he kill all those people? Whether he sent a notebook to anyone in advance is irrelevant. (It might be relevant if the survivors of the shooting ever brought a civil suit against the psychiatrist, charging the psychiatrist with failure to warn — but that’s another matter entirely. And even then, the notebook is probably irrelevant, since the psychiatrist did not even open the package it was in until after the shooting.) In the criminal case, finding out Winter’s sources serves no purpose, and the subpoena should be quashed. The judge is probably irked that Winter’s sources violated his gag order in the case, but he never should have issued a gag order in the first place.

Of course, the suspect has rights under the same Constitution that protects the journalist. Holmes is entitled to a fair trial, which includes the right to face his accusers. But Winter’s sources are not his accusers and do not need to be dragged into this case. Holmes’ rights to a fair trial also include the right to be tried by an impartial jury — that is, one that is not inflamed by news reports about the case. But there again, the prosecutor and judge have no leg to stand on. Whether or not there was a notebook and whether Winter was told about it by this person or that person has no bearing on the state of mind of the jurors who will ultimately hear the case and decide Holmes’ fate. My suspicion is that the prosecutor and the judge just want to control all the parties in the case, and they are frustrated that they can’t do so.

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Recently, some people have complained that the liberal media have been slow to rally behind Winter because she works for the media empire of the despised conservative Rupert Murdoch. (According to the Times, she used to work for Murdoch’s New York Post before signing on as an investigative reporter for FoxNews.com, the website associated with Murdoch’s Fox News on cable television.) Today’s Times carried a news story and an op-ed about the case, so it hardly seems that the liberal Times is ignoring the case.

Some folks at  Fox News seem to have a problem with the Constitution, especially when it comes to extending its protections to unpopular causes. But the beauty of the Constitution is that it exists for all of us, without exceptions. So to my colleagues at Fox News, I say welcome to the experience of being a frightened individual, hunted by the powers that be, despised and alone, hoping against hope that some clause in a document drafted in 1789 can save you from unwarranted punishment.

That’s why we have the Constitution, for everyone. 

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Press freedom: A new “Ken Burns effect”?

By Christopher B. Daly 

Thanks to documentary film-maker Ken Burns, a federal magistrate has struck a blow for press freedom that strengthens the legal protections for documentary film-makers, journalists, all sorts of people who prepare non-fiction for audiences, and — not least — those audiences themselves. In this case, everyone wins except the government lawyers who wanted to rummage through Burns’ outtakes from a controversial film.

Briefly, the case involves a 2012 film made by Burns and his daughter, Sarah Burns. The film, titled “The Central Park Five,” tells the true story of imgres-1a notorious 1989 rape that occurred in New York’s Central Park. It tells of the fateful rush to judgment by law enforcement officials and the railroading of five young African-American men who were sentenced to long jail terms, even though they were innocent of the crime. Eventually, the men sued the city of New York.

Then, the city’s lawyers, presumably seeking some exculpatory material, decided to go fishing in the Burnses’ raw footage. They probably hoped to get lucky and find something that would let the city off the hook or at least muddy the waters. The city’s lawyers demanded access to the Burnses’ notes and outtakes. Right there, they should have known better. What could be more chilling to the practice of journalism (or documentary film-making, or history, for that matter) than having government lawyers picking through the material that doesn’t meet the standard of truth and accuracy. (I know that I have cartons full of notes of material that never saw the light of day because I considered that stuff wrong, unfair, or simply incomprehensible.)

To his credit, Ken Burns resisted that demand and hired lawyers of his own. This week, Magistrate Judge Ronald L. Ellis of United States District Court in Manhattan threw out the government lawyers’ request.

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[Before any journalists reading this get too smug, “The Central Park Five” is also a cautionary tale about the news media’s own rush to judgment in the case, which was just as grotesque as that of law enforcement — indeed it may have been a driver of the ultimate injustice.]

 

So, congrats to Ken and Sarah Burns for standing up for freedom. In the rape case, it turns out the authorities had the wrong guys. In the subpoena for outtakes, it also turns out the authorities had the wrong guys. 

From today’s New York Times:

Judge Ellis also ruled that the city failed to meet the requirements for subpoenas to journalists for nonconfidential material: that the material would be significant and relevant to its case and was unavailable elsewhere. He said pretrial depositions would give the city’s lawyers ample opportunity to question the five men.

“It’s a marvelous decision for documentary filmmakers and point-of-view journalists,” Mr. Burns’s lawyer, John Siegal, said. “And it’s an important victory for the media industry generally.”

 

 

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Protecting journalists’ sources

By Chris Daly 

It’s good to see the news media agreeing to close ranks on something. In the latest case, it is an attempt by the U.S. Justice Department to force a prominent, respected journalist to reveal the identity of his source. The government wants that identity revealed so that it can go ahead and punish the “leaker.”

According to a story in today’s NYTimes by Charlie Savage, just about every major U.S. news organization joined in urging a federal appeals court to “shield” the journalist, the indispensable James Risen, a Times reporter on national security issues who also wrote a book in 2006 called State of War. In his book, Risen, using confidential sources, embarrassed the CIA by detailing the agency’s failed attempts to sabotage the Iranian nuclear-weapons program. To my mind, that seems like valuable information that a free people ought to have access to, so that we can debate the wisdom of what it being done in other countries in our name. Without reporting like that done by Risen, we would all just be kept in the dark.

The story in the Times has plenty of valuable links to the original documents, including the media’s amicus brief. Here is a link to the key Supreme Court ruling on the issue (and be sure to read down to Justice Douglas’s stirring dissent, which gets it right).

For a fuller understanding of the historical backdrop of the case, here is an excerpt from my new book (due out in about a week) that details the U.S. Supreme Court’s handling of the landmark Branzburg case in 1972. Branzburg v. Hayes was the case that has shaped the legal, political, and constitutional debate over whether journalists should have a “shield law” to allow them to protect confidential sources.

From Covering America © Christopher B. Daly:

(pardon the formatting issues)

In the spring of 1968, [New York Times reporter Earl] Caldwell traveled to Memphis to cover the strike being waged by the city’s sanitation workers, supported by the Reverend Martin Luther

King Jr. Caldwell was in the Lorraine Motel on April 4 when a loud shot rang out.

The only journalist present at the scene, Caldwell immediately called the Times

newsroom and began dictating details of the King assassination, which the editors

spread across the top of page one. According to Caldwell, King had spent

most of the day in his room, then emerged around 6 p.m. onto the balcony, wearing

a black suit and a white shirt. Caldwell’s report continued:

Dr. King, an open-faced genial man, leaned over a green iron railing to

chat with an associate. . . .

The Rev. Ralph W. Abernathy, perhaps Dr. King’s closest friend, was

just about to come out of the motel room when the sudden loud noise

burst out.

Dr. King toppled to the concrete second-floor walkway. Blood

gushed from the right jaw and neck area. His necktie had been ripped

off by the blast.

 

King’s murder touched off a fresh round of violence in cities across America, and

Caldwell returned to the “riot beat” for much of the summer (fig. 12.5).

That fall, Caldwell went to San Francisco to become a West Coast correspondent

for the Times. Through his contacts among the few black reporters in the Bay

Area, he gained access to Black Power advocate Eldridge Cleaver, and by the end

of 1968, Caldwell was the most knowledgeable reporter in the mainstream press

about the emerging Black Panther Party, based across the bay in Oakland. As it

turned out, the Panthers were shrewd enough about the media to want coverage

in the New York Times, and they gave Caldwell access, as well as what reporters

call “color” (atmospheric details), on-the-record interviews, just about anything

he might want. His stories established that the Panthers were heavily armed and

were talking about violent revolution. Caldwell worried about how Cleaver and

the other Panthers would react to his reporting, but he didn’t need to. “The Panthers

wanted people to know what they were doing. They wanted me to write in

the paper about them having guns.”24 His reporting also attracted the attention of

the FBI, which was waging a nationwide campaign of surveillance and intimidation

against radical groups both black and white. That attention would develop

into one of the landmark Supreme Court rulings affecting reporters and their

ability to protect confidential sources.

The legal case began when FBI agents paid a visit to Caldwell and told him

that they wanted a lot more information about the Panthers. Caldwell told the

agents that everything he knew was right there in the newspaper, including the

fact that the Panthers were armed and that they were threatening to kill the president.

Even so, the government wanted more from Caldwell. He refused to talk,

however, believing that any appearance in secret before a grand jury would make

him look like an informant and dry up his sources. The agents were not satisfied,

and the Bureau turned up the pressure, warning him that he would be forced to

testify in court—a step that would not only destroy his relationship with the Black

Panthers but jeopardize his value as a reporter on any other beat as well. Facing

a possible court appearance, Caldwell destroyed most of his Panther files, but

there was still the matter of his testimony. In February 1970 he was served with

a subpoena ordering him to appear before a federal grand jury investigating the

Black Panthers. The subpoena did not name the Times, but the newspaper hired a

prestigious San Francisco law firm to represent Caldwell. Their advice: cooperate.

Hearing that, Caldwell tapped his network of black journalists, who steered him

toward a Stanford law professor, Anthony Amsterdam, a brilliant defense lawyer,

who agreed with Caldwell’s decision not to testify and offered to represent him pro

bono.25

After he continued to refuse to testify about his news sources, Caldwell was

found in contempt of court and ordered to jail, but he was allowed to remain free

while his case went to the Ninth U.S. Circuit Court of Appeals. The higher court

sided with Caldwell, but then the federal government appealed that ruling. Enroute

to the U.S. Supreme Court, Caldwell’s case was combined with two others

and filed under the heading Branzburg v. Hayes. Paul Branzburg was a reporter

for the Louisville Courier-Journal who had been an eyewitness to a drug crime.

(Thus he was not, strictly speaking, protecting a confidential source.) Paul Pappas

was a television news photographer working for a TV station in New Bedford,

Massachusetts, who had gone to nearby Providence to cover the local Black Panthers

chapter and spent several hours inside their headquarters. Like Caldwell,

Branzburg and Pappas were both journalists who had been ordered to testify

before grand juries; like Caldwell, they had refused on professional grounds.

In all three cases, the issue was not a classic instance of protecting the identity

of a confidential source. It was more a matter of preserving the journalists’ access

to sources, which would be destroyed if the people who were being reported on

suspected that the reporters had cooperated with law enforcement. All three cases

involved a constitutional claim that the First Amendment includes not only the

right to publish (and withhold) information freely but also the right to gather news

freely. Recognizing the stakes, news executives threw their institutional weight

behind Caldwell and the other reporters. Supporting briefs were filed by the Washington

Post Company, the Chicago Tribune Company, the American Newspaper

Publishers Association, the American Society of Newspaper Editors, the American

Newspaper Guild, the Radio and Television News Directors Association, the

Press Photographers Association, and the ACLU—along with affidavits from such

respected journalists as Anthony Lukas, Walter Cronkite, and Marvin Kalb.

In a decision handed down on June 29, 1972, the Supreme Court narrowly

ruled against the journalists.26 Writing for the 5–4 majority, Justice Byron White

held that the First Amendment had to be balanced against the Fifth Amendment,

which guarantees criminal defendants the right to have their cases presented to

a grand jury before indictment. In his opinion White invoked the ancient legal

doctrine that “the public . . . has a right to every man’s evidence.” The only exceptions,

he said, are those instances in which the states have adopted laws specifically

granting certain categories of people a legal privilege against having to testify.

Such a “testimonial privilege” might protect a wife from testifying about her

husband, a doctor about a patient, or a priest about a penitent. In such cases,

legislatures determined that some other social good was worth the cost of allowing

the privileged category of people to avoid the grand jury. But, White said,

the Court could not take seriously the idea “that it is better to write about crime

than to do something about it.” If reporters know things that prosecutors want to

find out, they must tell what they know. Besides, the justice wrote, if the Court

created a special privilege for journalists, it would soon have to define who is

(and is not) a journalist—a task that raised the specter of government licensing

of journalists, which would be far more murky than determining who is a doctor

or a priest. “Almost any author may quite accurately assert that he is contributing

to the flow of information to the public,” White wrote, warning that just about

anybody could claim to be a journalist of one variety or another. Finally, White

observed that the U.S. attorney general had written a set of guidelines governing

the issuance of subpoenas to reporters, which the high court thought ought to

suffice for the bulk of cases.27 The majority opinion also included an invitation

to legislatures to create a “testimonial privilege” for reporters, and many state

legislatures went ahead and passed versions of what are known as “shield laws.”

In a brief concurring opinion, Justice Lewis Powell, though voting with the

majority, very nearly came down on the other side. He warned prosecutors that

“no harassment of newsmen will be tolerated,” and he wrote that if reporters feel

they are being abused by overzealous prosecutors seeking the names of confidential

sources, then those reporters should go to court and seek a protective order. “The

asserted claim to privilege should be judged on its facts by the striking of a proper

balance between freedom of the press and the obligation of all citizens to give relevant

testimony with respect to criminal conduct,” Powell wrote, saying it is up to the

courts to handle such claims on a case-by-case basis. Nevertheless, his joining with

the majority had the effect of denying journalists’ claims to a constitutional privilege.

Among the dissenters, Justice William O. Douglas wrote one of the most eloquent

statements of press freedom in history. Having staked out a position as a

First Amendment fundamentalist, Douglas saw the Caldwell and related cases

in clear-cut terms. “My belief is that all of the ‘balancing’ was done by those who

wrote the Bill of Rights,” he said, adding that “by casting the First Amendment

in absolute terms, they repudiated timid, watered-down, emasculated versions

of the First Amendment. . . .” The key to understanding the First Amendment,

Douglas argued, is to recognize that it exists for the benefit of the American people

as a whole. If the people are to govern themselves, they must have reliable,

independent sources of information. “Effective self-government cannot succeed

unless the people are immersed in a steady, robust, unimpeded, and uncensored

flow of opinion and reporting which are continuously subjected to critique,

rebuttal, and re-examination,” he wrote. In Douglas’s view, the free press cases

that come before the Court are not really about the press per se; they are about the

rights of the American people, the ultimate sovereigns of our system. The press,

which serves as the agent of its audience, is incidental to the greater purpose

of self-government. Douglas continued: “The press has a preferred position in

our constitutional scheme, not to enable it to make money, not to set newsmen

apart as a favored class, but to bring to fulfillment the public’s right to know.

. . . There is no higher function performed under our constitutional regime. Its

performance means that the press is often engaged in projects that bring anxiety

and even fear to the bureaucracies, departments, or officials of government.” He

concluded by warning that the Court’s majority opinion would reduce journalists

to stenographers, and that without the right to protect confidential sources, “the

reporter’s main function in American society will be to pass on to the public the

press releases which the various departments of government issue.”

The majority, however, did not see it that way. As a result of the Court’s 5–4

ruling against the journalists, reporters and their sources have operated in legal

jeopardy ever since, at least in federal courts.

On the state level, the Branzburg ruling had the effect of spurring many legislatures

around the country to enact shield laws to protect reporters in state courts, but Congress has steadfastly

refused to recognize the same right on the federal level. Ironically, the Branzburg

ruling also had another impact: it dried up what was probably the FBI’s greatest

source of information about the Black Panthers—the reporting that anybody

could read in the pages of the New York Times. Of course, by the time Caldwell’s

case was resolved, the Justice Department had lost much of its interest in the

Black Panthers. Most of Caldwell’s contacts were in jail, in exile, or dead.

* * *

Meanwhile, by the late 1960s, more and more people. . .

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“There’s nothing to see here. Move along.”

By Chris Daly 

Just to be clear: It is never OK to arrest a journalist (except in rare cases where the journalist is actively engaged in some activity that is a crime, like committing arson on a day off). When a journalist is working, the police have a positive duty not to interfere. The arrests of the journalists covering the Occupy movement are violations of their Constitutional rights. More importantly, those arrests violate the absolute right of the people to be informed about what John Adams called “the character and conduct of their rulers.”

To repeat, the First Amendment says:

“Congress shall make no law …

abridging the freedom . . . of the press.”

End of story. The founders left no wiggle room there. James Madison did not write, “Make no law unless it would be convenient to impose a news blackout.” He did not write, “Make no law unless you think you can get away with telling the people you are arresting journalists for their own safety.” 

Shame on those cops. Shame on their chiefs. Shame on those mayors.

Discipline the cops. Fire the chiefs. Recall the mayors.

Those things won’t happen, of course, so it’s up to the journalists on scene. Report, report, report. Take names and badge numbers. Call your lawyers. File suit.

Shoot video. Take pictures. Get audio.

 

[Yes, of course, I realize that there is another side to this argument: It is ludicrous to say that all journalists have an unlimited right to descend en masse on every crime scene, disaster site, drug bust, surveillance stake-out, courtroom, grand jury room, and so on. But that’s not what’s at stake in the Occupy arrests. These are not secret, investigative police actions. These are important public-policy matters, playing out in public (Yes, Zuccotti Park is private, but that seems like a technicality at this point, since the occupation is infused with such a public interest in its outcome). It is also disingenuous for police, when they start making arrests, to declare the area a “crime scene” just because they are making arrests and order all journalists to leave. If the police are allowed to do that, then journalists will never be able to watch the police at work and report about it. That would be a great day for the police but a bad day for everybody else. Even Justice Byron White, no friend of the news media, saw the threat. As he wrote in the majority opinion in the 1972 Branzburg ruling, “Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated.”]

 

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Terror v. Freedom

by Chris Daly 

A trial taking place in U.S. District Court in Boston deserves more attention than it has been getting. This is a criminal trial, pitting the United States government (in the form of the U.S. Justice Dept) against one of its citizens (in the person of Tarek Mehanna, of suburban Sudbury).

In brief, the government accuses Mehanna of some sort of involvement with terrorism, more specifically jihad.

What I cannot find in any of the documents I have been able to track down or in the news accounts of the prosecutors’ statements is any evidence of any specific criminal action taken by the suspect. The only evidence has to do with allegations of speech, writing, translation, and Web-posting.

Any time the government attempts to criminalize speech rather than actions, that should concern all of us who care about the First Amendment and  the freedom to speak and publish.

Granted, there are some gray areas in law. One has to do with conspiracy. If you speak to your fellow criminals in the planning of a crime, that could be a crime. That is one reason that conspiracy is such a standby of prosecutors. Another gray area involving speech and crime involves the legal doctrine of incitement, which can be extended to such areas as hate speech and “fighting words.” If you use words to directly encourage someone else to commit a crime or to provoke them, you may be guilty of inciting the commission of a crime. I would acknowledge that those are varieties of speech that might, in limited circumstances, justify the criminalization of certain kinds of speech.

In the case of Tarek Mehanna, the evidence presented thus far does not look all that compelling. He may have attempted to conspire with Al Qaeda, but they appear to have given him the brush-off. (Is there such a crime as attempted conspiracy?) He may also have attempted to incite his co-religionists to rise up and slay the infidels, but they appear to have ignored him. (Is there such a crime as attempted incitement?)

One odd feature of the case is that the government has not been very forthcoming in providing documents. Neither the U.S. Attorney’s office in Boston nor the U.S. District Court is making it easy for citizens to follow along. Neither is Mehanna’s able defense attorney, Jay Carney.

So far, the biggest trove of documents has been  posted by an outfit that calls itself “Free Tarek.” So, as always, consider the source.

To be continued. . .

 

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Free Speech and its limits

By Chris Daly 

Here’s a story that nicely illustrates the limits of the First Amendment. Many people wrongly think that the First Amendment guarantees freedom of speech (and of “the press”) in all settings, all the time. Not so.

The First Amendment is written so that it prevents the government from censoring speech before it can reach its intended audience. The First Amendment says nothing about private parties, like Fox or News Corp. Private parties are free to censor their employees, and they are not shy about doing so.

Thus, it should come as no surprise that News Corp. would choose to censor Alec Baldwin. He has no recourse against News Corp. under the First Amendment, because there was no government action involved. His best revenge is to shout about it to every other news outlet he can find.

So, a hat tip to the NYTimes‘ Brian Stelter for giving this story some attention.

(At the same time, the whole episode implicitly makes the case for having diversity in the news media, so that even Rupert Murdoch cannot control absolutely everything.)

 

 

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